This was a Costs Decision arising from two matters: (i) GW’s Application to Strike the Statement of Claim by RK as against him, and (ii) the Application by RK and SK to strike the Counterclaim and Third-Party Claim brought by GW against them. Justice Mah allowed GW’s Application in part, striking out causes of action for abuse of process, intimidation, fraud, unlawful interference with economic interests, negligence and breach of trust, while preserving causes of action for conspiracy, malicious prosecution, defamation and intentional infliction of mental harm. Justice Mah struck the Counterclaim and Third-Party Claim, granting RK and SK’s Application in full.

RK and SK argued that GW’s Counterclaim and Third-Party Claim were “hopeless”, leading to an unnecessary expense to achieve an inevitable result. They submitted that an elevated costs award was warranted, and, if not, then full indemnity was required to deter what was in effect an abuse of the litigation process.

Justice Mah began by citing Rule 10.29(1) for the proposition that the successful party is presumptively entitled to costs. However, the determination of costs is “inherently discretionary, and the exercise of that discretion must be based on judicial principles of reasonableness, fairness, balance and equity”.

The Court noted that while there was a great deal of antipathy between RK and GW, this was not an excuse for GW to bring needless and hopeless actions. As such, some measure of elevated costs was needed to express the Court’s disapproval.

Applying a multiplier of two to Item 8(1) in Schedule C (Applications Requiring Written Briefs), Justice Mah ordered GW to pay costs of $4,000 for the unsuccessful Counterclaim and Third-Party Claim, after crediting GW costs of $1,000 for his partial success on the Application to Strike.